Secrecy reaches absurd level in detention
/Attorneys for the Justice Department
appeared before a federal judge in Washington this month and asked him
to dismiss a lawsuit over the detention of a U.S. citizen, basing their
request not merely on secret evidence but also on secret legal
arguments. The government contends that the legal theory by which it
would defend its behavior should be immune from debate in court. This
position is alien to the history and premise of Anglo-American
jurisprudence. Ahmed Abu Ali was arrested in June 2003 in Saudi Arabia.
He and his family claim the arrest took place at the behest of U.S.
officials who have encouraged the Saudis to keep him locked up. The
facts are murky, and Judge John Bates refused in December to dismiss
the case. Since then, the U.S. government has acted to frustrate all
reasonable searches for answers. It has moved to stay discovery based
on secret evidence. It has proposed adding to the facts at Bates’
disposal by submitting secret evidence that Abu Ali’s attorneys would
have no opportunity to challenge. Most recently, it urged that the case
be dismissed on the basis, yet again, of secret evidence – this time
supplemented with what a Justice Department lawyer termed “legal
argument (that) itself cannot be made public without disclosing the
classified information that underlies it.” The liberty of a U.S.
citizen is at stake. It is not clear what role the U.S. government
played in his arrest, nor that he is innocent. What is clear is that
Abu Ali has been held for 20 months without being charged and that, as
Bates wrote in December, his lawyers “have presented some unrebutted
evidence that (his) detention is at the behest and ongoing direction of
United States officials.” It should be unthinkable that the courts
would resolve this matter without hearing from both sides on key legal
questions. It should have been unthinkable for the government to
propose such a step. [more]